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Occupying the First Amendment

Whatever else it accomplishes, Occupy Wall Street is revealing distortions in our current understanding of the First Amendment. In recent decisions, the Supreme Court has protected Wall Street’s constitutional right to pour millions into political campaigns. But as presently construed, the First Amendment isn’t an obstacle when it comes to silencing the Occupiers.
The demonstrators were almost evicted from Zuccotti Park last Friday; but were saved, paradoxically, by Zuccotti’s status as a private enclave reserved for public use by zoning laws. In contrast, New York City imposes a flat ban on sleeping in its public parks.
Worse yet, the Supreme Court upheld such a prohibition in 1984, finding that the government’s interest in cleaning up the parks trumped protesters’ rights to freedom of expression. The case involved an overnight demonstration against the treatment of the homeless population during the winter. It provoked an eloquent dissent by Justice Thurgood Marshall. He emphasized that the protesters’ willingness to endure harsh conditions was central to their message, and that it was possible for the city to clean up its park without suppressing their efforts to advance their vision of a more humane America.
Marshall was right in 1984. People must be allowed to lay down their bodies, not only their wallets, to advocate deepest beliefs. Perhaps the Court, applying more recent decisions that have protected flag burning as speech, will provide the Occupiers with the First Amendment protections that it lavishes on Wall Street’s political interventions. But until that happens, it’s up to ordinary Americans to protect the First Amendment, and insist that our politicians pay heed even if the courts do not.
For centuries, citizens have marched on our streets and assembled in our parks to speak their minds.
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